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2025 DIGILAW 916 (HP)

Asha Devi v. State of Himachal Pradesh

2025-05-05

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has, inter alia, prayed for the following reliefs:- “i) Issue a writ of certioirari to quash the orders dated 12- 04-2024 (Annexure P-1), 24-7-2024 (Annexure P-2 & Annexure P-3) and 29-07-2024 (Annexure P-4). ii) Issue a writ of mandamus directing the respondents No.2 and 4 to conclude the regular statutory inquiry (under Section 145 of the Himachal Pradesh Panchayati Raj Act) within time bound manner initiated in pursuance to order dated 31-01-2024 and submit the inquiry report before this Hon’ble Court.” 2. When this case was listed on 16.09.2024, the following order was passed:- “ CWP No.7668/2024 & CMP No.13044/2024 Reply by the appearing respondents be filed within four weeks. Issue notice to respondents No.7 and 8, returnable within four weeks, on taking steps within a week. Heard learned Senior Counsel for the petitioner and learned Deputy Advocate General for respondents No. 1 to 6 and considered the case file as also the instructions placed on record by the learned Deputy Advocate General for the purpose of considering the interim relief prayed for the petitioner. 2. Petitioner is Pradhan of Gram Panchayat Jarwra Juneli, Tehsil Shillai, District Sirmour, H.P. 2(i) A show-cause notice was issued to her on 30.09.2023 (Annexure P-15), levelling certain allegations against her. Petitioner filed her detailed reply to the show- cause notice vide Annexure P-16. 2(ii) At this stage, petitioner moved a Civil Writ Petition No. 8955 of 2023, seeking quashing of the inquiry report as well as consequent show-cause notice dated 30.09.2023. The writ petition was decided on 21.11.2023 (Annexure P17). The writ petition was held to be premature. The petitioner was given liberty to seek appropriate remedy for redressal of her grievances in accordance with law under Section 148 of the Himachal Pradesh Panchayati Raj Act, 1994 read with Rule 143 of the H.P. Panchayati Raj (General) Rules, 1997. Paras- 2 and 3 of the aforesaid order read as under:- “2. The petition, at the very face of it, is premature as when an enquiry has been initiated against the petitioner, he should face the same, and in case, he is aggrieved by the final outcome thereof, then, he can have recourse to such legal remedies as are provided under the provisions of the H.P.Panchayati Raj Act, 1994. 3. The petition, at the very face of it, is premature as when an enquiry has been initiated against the petitioner, he should face the same, and in case, he is aggrieved by the final outcome thereof, then, he can have recourse to such legal remedies as are provided under the provisions of the H.P.Panchayati Raj Act, 1994. 3. As far as the allegation of biasness made in the petition is concerned, the petitioner can always bring this fact into the notice of the superior authorities, and in case, no action is taken thereupon, then the petitioner can have recourse to all such legal remedies as may be available to himin law as per Section 148 of the 1994 Act read with Rule 143 of the H.P. Panchayati Raj (General) Rules, 1997.” 2(iii) Petitioner preferred Revenue Appeal No. 197 of 2023 before the Divisional Commissioner Shimla, against the inquiry and the consequent show- cause notice dated 30.09.2023. Vide order dated 30.11.2023, the Divisional Commissioner, Shimla Division, directed the parties to maintain status quo as on date (Annexure P-18). 2(iv) The respondents thereafter issued order on 06.12.2023 (Annexure P-19), placing the petitioner under suspension. 2 (v) Petitioner preferred Revenue Appeal No. 215 of 2023, assailing her suspension order before the Divisional Commissioner Shimla. Alongwith the appeal, petitioner also moved an application under Section 151 of Code of Civil Procedure (CPC in short) for staying her suspension order dated 06.12.2023. The Divisional Commissioner, Shimla dismissed the application moved by the petitioner under Section 151 CPC on 14.12.2023 (Annexure P-20). 2(vi) Aggrieved against the dismissal of her application for stay of suspension order, petitioner preferred CMPMO No. 709 of 2023 before this Court, which was disposed of on 29.02.2024 (Annexure P- 21). The impugned order passed by the Divisional Commissioner, Shimla on 14.12.2023 was set-aside. The Divisional Commissioner Shimla was directed to make endeavour to decide Revenue Appeal No. 215 of 2023 by 15.04.2024. In the interregnum, operation of the petitioner’s suspension order dated 06.12.2023, was stayed. 2(vii) Pursuant to the aforesaid direction, the Divisional Commissioner, Shimla decided the Revenue Appeal No. 215 of 2023 vide impugned order dated 12.04.2023 (Annexure P-1). The Divisional Commissioner Shimla was directed to make endeavour to decide Revenue Appeal No. 215 of 2023 by 15.04.2024. In the interregnum, operation of the petitioner’s suspension order dated 06.12.2023, was stayed. 2(vii) Pursuant to the aforesaid direction, the Divisional Commissioner, Shimla decided the Revenue Appeal No. 215 of 2023 vide impugned order dated 12.04.2023 (Annexure P-1). Relevant portion of this decision concerning which the petitioner has raised grievances, is as under: - “In the light of this decision, this Court orders that the Pradhan will not be associated with any kind of financial decision till the enquiry is completed and subsequent decision is taken on that enquiry without prior permission of the Deputy Commissioner. The Pradhan will take charge after a week and in the meantime, entire record will be taken in possession by the Enquiry Committee and Pradhan will not having any access to the record till the completion of the enquiry and subsequent orders thereof. 12. In view of the foregoing discussions, the case is remanded back with the direction that a fresh enquiry be conducted in the light of observations made here-in-above. Miscellaneous applications, if any, stand disposed of accordingly. A copy of this order be placed on the file of the Lower Court and record of the Lower Court be returned back. The case file of this Court be consigned to record room after due completion.” 3. Learned Senior Counsel for the petitioner contended that the directions issued by the Divisional Commissioner in the impugned order dated 12.04.2024 (Annexure P-1) are illegal. The Divisional Commissioner had no jurisdiction to issue aforesaid directions in the appeal preferred by the petitioner against her suspension order dated 06.12.2023. That there was no occasion to the Divisional Commissioner to have ordered fresh inquiry when the inquiry initiated against the petitioner pursuant to her suspension, was already going on w.e.f. January 2024 and nine witnesses in that inquiry, including the Sub- Divisional Magistrate and Junior Engineer concerned has been examined.Learned Deputy Advocate General submitted that there was no bar upon the Divisional Commissioner to have ordered for fresh inquiry. 4. Prima-facie, it appears that Revenue Appeal No.215 of 2023 was instituted by the petitioner against her suspension order dated 06.12.2023. The Divisional Commissioner, Shimla had declined to grant interim relief to the petitioner against her suspension order. Petitioner’s application moved under Section 151 CPC was dismissed on 14.12.2023. 4. Prima-facie, it appears that Revenue Appeal No.215 of 2023 was instituted by the petitioner against her suspension order dated 06.12.2023. The Divisional Commissioner, Shimla had declined to grant interim relief to the petitioner against her suspension order. Petitioner’s application moved under Section 151 CPC was dismissed on 14.12.2023. In CMPMO No.709 of 2023, instituted by the petitioner against dismissal of her interim relief application, direction was issued to the Divisional Commissioner, Shimla to decide Revenue Appeal No. 215 of 2023 by 15.04.2024. Section 145 (3) of the Himachal Pradesh Panchayati Raj Act, 1994 mandates holding inquiry within ten days after issuance of suspension order. In the instant case, inquiry initiated in January 2024 against the petitioner pursuant to her suspension, was stated to be in progress at the time of passing of impugned order by the Divisional Commissioner on 12.04.2024. The impugned order dated 12.04.2024 does not give justifiable reasons for ordering holding of fresh inquiry and constitution of fresh committee for holding fresh inquiry against the petitioner. It appears that neither the respondents had any grievance against the inquiry being conducted against the petitioner nor the petitioner had raised any issue or grievance against the inquiry being held against her. Therefore, the order passed by the Divisional Commissioner, Shimla for holding de novo inquiry against the petitioner seems to be beyond the scope of appeal preferred by the petitioner and the case made out by the petitioner. Hence in the meanwhile, operation of the impugned order to the extent it directs holding of fresh inquiry against the petitioner is stayed. Consequently, office orders both dated 24.07.2024 (Annexures P-2 and Annexure P-3) are also stayed. List after four weeks.” 3. Today, when the case was taken up for consideration, learned counsel for the parties apprised the Court that in terms of Section 145 (3) of the Himachal Pradesh Panchayati Raj Act, 1994, as the proceedings initiated against the petitioner were not completed within a period of six months, therefore, the petitioner stands reinstated. 4. List after four weeks.” 3. Today, when the case was taken up for consideration, learned counsel for the parties apprised the Court that in terms of Section 145 (3) of the Himachal Pradesh Panchayati Raj Act, 1994, as the proceedings initiated against the petitioner were not completed within a period of six months, therefore, the petitioner stands reinstated. 4. Learned Senior Counsel appearing for the petitioner submitted that in the light of the fact that the Appellate Authority was only to decide the legality of the order which was assailed by the petitioner before it, the act of the Authority of transgressing the scope of appeal and ordering a fresh inquiry was beyond jurisdiction and to this extent the petition requires to be allowed and the directions issued by the Appellate Authority to hold fresh inquiry has to be set aside. 5. Learned counsel appearing for the private respondent submits that though there is no infirmity in the order passed by the Appellate Authority, however, in the interest of justice, as the inquiry originally initiated did proceed to same extent, therefore, let these proceedings be closed with direction to the Authorities to take the inquiry initiated earlier to its logical conclusion within a time bound period. 6. Having heard learned Senior Counsel for the petitioner as well as learned Additional Advocate General and learned counsel for the private respondent, this Court is of the considered view that the order passed by the Appellate Authority to the extent it ordered the holding of a fresh inquiry through a fresh Inquiry Officer is not sustainable in the eyes of law. 7. As the right of appeal is a statutory right and the Appellate Authority while exercising the power of appeal has to undertake the exercise of ascertaining the legality of the order which is under challenge and the Appellate Authority can either allow the appeal or dismiss the same, in the present case, rather than restricting itself to the said course, the Appellate Authority transgressed its boundaries and after making observations qua the inquiry which was in progress, ordered a fresh inquiry in the matter by holding that there were allegedly serious allegations against the Pradhan of financial embezzlement with further direction that inquiry be conducted through a technical expert of the Public Works Department not below the rank of executive officer, assisted by the Panchayat Inspector. These directions issued by the Appellate Authority were not called for, for the reason that what was under challenge before the Appellate Authority was the order of suspension and the Appellate Authority was required only to scrutinize as to whether the order of suspension was passed by the Authority by meeting the requirements of Section 145 of the Himachal Pradesh Panchayati Raj Act or not. 8. Therefore, to this limited extent, the petition is allowed. Order dated 12.04.2024 (Annexure P-1) is set aside and the order of fresh inquiry as well as appointment of fresh Inquiry Officer is set aside, with further direction to the Authorities concerned to take the inquiry initiated originally to its logical conclusion from the stage where it was, within a period of six weeks from today. The parties through counsel are instructed to render full assistance so that the inquiry is completed within the time granted by the Court. It is clarified that this Court has not made any observation as far as the allegations levelled against the petitioner are concerned. 9. Petition stands disposed of. Pending miscellaneous applications, if any, also stand disposed of.